Lazar v Lazar

Annotate this Case
[*1] Lazar v Lazar 2011 NY Slip Op 51749(U) Decided on August 11, 2011 Supreme Court, Erie County NeMoyer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 11, 2011
Supreme Court, Erie County

Melissa Lazar, Plaintiff,


Barry D. Lazar, Defendant.




RANDY S. MARGULIS, ESQ., for Defendant

Patrick H. NeMoyer, J.


The NOTICE OF MOTION of Plaintiff, the supporting AFFIDAVIT

of Melissa Lazar, and the ATTORNEY AFFIDAVIT of Christopher

S.Mattingly, Esq., with annexed exhibits;


MOTION DATED MAY 23, 2011 [i.e., the affidavit of Barry D.

Lazar], and the ATTORNEY AFFIRMATION of Randy S Margulis,

Esquire, with annexed exhibit;

the REPLY AFFIDAVIT of Melissa Lazar, with annexed exhibit;

the reply ATTORNEY's AFFIDAVIT of Christopher S.Mattingly,



Nathanson, Ph.D.; and


(handed up to the Court at oral argument).

The parties were married in 1998 on the island of St. Thomas in the U.S. Virgin Islands. Plaintiff bore defendant two children, a girl named Maya, now 12 years old, and a boy named David, who sadly died of complications from influenza in March 2008 at the age of four. Plaintiff commenced this action for divorce in June 2009. Defendant served his first answer, which included a counterclaim for divorce and another for annulment of the marriage based upon fraud, in April 2010. In November 2010, defendant served his amended answer, which added a counterclaim seeking an award of compensatory [*2]and punitive damages for fraud. The alleged fraud by plaintiff is of two major species: first, that at the time of the marriage and thereafter, plaintiff repeatedly and affirmatively misrepresented that she is in fact Jewish; and second, that plaintiff before and at the time of the marriage concealed, and thereafter lied about, the fact that she previously had been married and divorced (twice, in fact).[FN1] Now before the Court is plaintiff's motion for summary judgment dismissing the counterclaims for fraud, a motion opposed by defendant. Upon its consideration of the parties' respective submissions, this Court renders the following determinations:


The essential elements of a cause of action for damages based upon common-law fraud are representation of a material existing fact (or concealment of such fact while under a duty to reveal it), falsity, scienter, deception/inducement, justifiable reliance, and injury or damages (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 318 [1995]; Channel Master Corp. v Aluminium Ltd. Sales Corp., 4 NY2d 403, 406-407 [1958]). Moreover, the procurement of one spouse's consent to marriage by the fraud of the other spouse renders the marriage voidable by the defrauded spouse (see Domestic Relations Law § 7 [4]). The defrauded spouse may maintain an action to annul the marriage on the ground of such fraud provided that the action is brought within the time delimited by the statute of limitations governing other causes of action for fraud, i.e., within six years of the commission of the fraud or two years of the time when the plaintiff discovered the fraud or could have discovered it by the exercise of reasonable diligence (see Domestic Relations Law § 140 [e]; see also CPLR 203 [g]; 213 [8]). However, a marriage shall not be annulled on the ground of fraud if it appears that, at any time before commencement of the action, the parties voluntarily cohabited as husband and wife with a full knowledge of the facts constituting the fraud (see Domestic Relations Law § 140 [e]). Domestic Relations Law § 144 (1) provides that no final judgment of annulment on the ground of fraud shall be granted absent proof of facts demonstrating such fraud, and that the burden is on the party claiming fraud to prove, inter alia, that there has been no such cohabitation following discovery of the fraud.

In order for defendant to succeed in proving his entitlement to an annulment based on fraud in the inducement, he must show that plaintiff made premarital representations to him upon which he relied and which were material to the degree that, had such representations not been made, defendant would not have consented to the marriage (see Kober v Kober, 16 NY2d 191, 195 [1965]; Di Lorenzo v Di Lorenzo, 174 NY 467, 471 [1903]; Brazil v Brazil, 235 AD2d 611, 613 [3d Dept 1997]). Furthermore, the fraud must be of such a nature that an ordinarily prudent person would have been deceived (see Kober, 16 NY2d at 195; Di Lorenzo, 174 NY at 474-475). Misrepresentation of one's religion or religious intentions has been held sufficient to warrant annulment on the ground of fraud (see Rutstein v Rutstein, 221 App Div 70, 72-76 [1st Dept 1927]; Williams v Williams, 194 Misc 201, 202-203 [Sup Ct Kings Co 1947]), as has misrepresentation or concealment of one's prior marital status (see Kober, 16 NY2d at 195, citing Smith v Smith, 273 App Div 987 [3d Dept 1948]; Costello v Costello, 155 Misc 28, 32 [Sup Ct Kings Co 1934]; see also Murray v Murray, 271 AD2d 587, 588 [2d Dept 2000]).


In the materials before the Court, defendant describes himself as an Orthodox Jew from South [*3]Africa, with such "orthodoxy" further described in doctrinal and ritualistic terms as falling somewhere between Orthodox Judaism and Conservative Judaism as they are known and practiced in America. Plaintiff describes herself as an American Reform Jew. According to defendant's counterclaims, plaintiff expressly misrepresented to defendant that she is Jewish and that her mother is Jewish, and moreover took affirmative steps designed to conceal plaintiff's true religious background, Catholicism, in order to bring about the marriage and continue it for eleven years. Defendant indeed alleges that the fraud was carried out throughout the marriage by means of plaintiff's consistent observance, along with her husband and children, of Sabbath dinners and prayers at home on Friday evenings and further observance of Jewish holidays and festivals. According to the express allegations of the answer, it is a central tenet of Orthodox, Conservative, and "sometimes" Reform Judaism that one's Jewishness is determined by the Jewishness of one's mother. According to defendant, plaintiff at all times knew that it was essential and important to defendant that he marry a Jewish woman and that his children be Jewish, and she further knew that defendant would not have gone through with the marriage (and that no Rabbi would have performed it) had the truth been known at the time of the marriage. Further according to defendant, he first learned that plaintiff's mother, and hence plaintiff, was not Jewish in July 2009, after plaintiff's commencement of the divorce action. According to defendant, that new knowledge has caused defendant mental distress inasmuch as he now understands that his "daughter is in fact not Jewish from an Orthodox and Conservative perspective" and therefore cannot enjoy the "right of return" to Israel.

Plaintiff's response to the foregoing allegations, as set forth in her motion papers, is that she is in fact Jewish, having been (as far as she knows) born to a Jewish woman born in turn to Jewish maternal grandparents, German Jews named Gotthelf (both now interred in a Jewish cemetery in Buffalo); that plaintiff's mother was reared by her parents as a Jew, as far as plaintiff knows; that plaintiff herself was reared in the Jewish household of her Jewish mother and Jewish adoptive father (plaintiff has never known her non-Jewish biological father), with the family observing the Sabbath, regularly going to temple on high holy days, and attending Hebrew school; that plaintiff has been a practicing Jew and a lifelong member of her Reform Jewish temple, Temple Beth Zion, since her childhood; and that she (along with the parties' daughter Maya) remains a practicing Jew and a member in good standing of her Reform Jewish community, as evidenced by letter affidavits of the rabbi and cantor at Temple Beth Zion.

Defendant's counterclaims and opposing papers make clear that the basis of his alleged belief that plaintiff and Maya (and perforce his deceased son) are not Jewish is that they do not meet the matrilineal genealogical standard held to by certain sects of Judaism, and because neither plaintiff nor Maya ever "converted to Judaism" according to that standard. Why defendant believes that the South African Orthodox or the American Conservative standard of Judaism should be binding upon plaintiff (and her rabbi and cantor) as American Reform Jews is nowhere stated by defendant and is thus completely unclear to the Court. Even more mystifying to the Court is how it conceivably could, at defendant's request, resolve what is in essence a purely religious dispute between defendant and his South African Orthodox Jewish teachings, on the one hand, and plaintiff and her American Reform Jewish doctrine on the other. The strictly religious nature of the dispute is confirmed by each party's invocation of doctrinal standards of various sects of Judaism concerning "Who is a Jew?", and by each party's reliance upon or refutation of certain religious authorities concerning questions of genealogy and religious practice. It is thus the Court's conclusion that it could not possibly address the instant dispute over plaintiff's actual Jewishness — especially the sub-dispute concerning whether plaintiff (or her mother) is a legitimate convert to Judaism without intruding into the religious sphere and thereby violating the First Amendment to the Constitution (see Madireddy v Madireddy, 66 AD3d 647, 648-649 [2d Dept 2009], appeal dismissed 14 NY3d 765 [2010]; see generally Mandel v Silber, 304 AD2d 538 [2d Dept 2003]). Inasmuch as it would require this Court to decide that defendant's view of a person's Jewishness is true or correct and that the countervailing religious viewpoint of plaintiff and her temple officials is untrue or [*4]incorrect (see Lightman v Flaum, 97 NY2d 128, 137 [2001], cert denied 535 US 1096 [2002]), the Court certainly could not decide the motion in favor of defendant by upholding the counterclaims based on alleged religious fraud. Thus, those aspects of the counterclaims must be dismissed as calling for an unwarranted judicial entanglement in religious doctrine (see Madireddy, 66 AD3d at 648-649; see also Sieger v Sieger, 37 AD3d 585, 587 [2d Dept 2007]).

On the other hand (and even assuming that the Court is wrong about the constitutional implications of upholding the counterclaims), the Court can address the non-viability of the counterclaims alleging religious fraud, and can and must rule in favor of plaintiff on the motion to dismiss that aspect of the counterclaims, on the basis of well established and religiously neutral principles of secular law (see Matter of Congregation Yetev Lev D'Satmar, Inc. v Kahana, 9 NY3d 282, 286 [2007]; First Presbyt. Church of Schenectady v United Presbyt. Church in U.S. of Am., 62 NY2d 110, 119-120 [1984], cert denied 469 US 1037 [1984]), particularly those that require that the party charged with the fraud have acted with scienter, i.e., a knowledge of the untruth of the representation. Here, the Court does not need to inquire into the doctrinal validity of plaintiff's assertion that she is in fact Jewish in order to determine, as a matter of law, that plaintiff genuinely believed in 1998 and throughout the marriage, and equally genuinely believes now, that she is in fact Jewish. Plaintiff asserts that she is Jewish because, to her knowledge, her mother is Jewish and was born to Jewish parents. Defendant claims that he has heard otherwise (from plaintiff's stepbrother, who supposedly says that plaintiff "must not be" Jewish), but nowhere does defendant's state that he has heard (whether from plaintiff's stepbrother or otherwise), that plaintiff does not genuinely believe in her own Jewishness. Plaintiff demonstrably has come to her self-image as a Jew not merely based upon her understanding to this point that she is genealogically Jewish on her mother's side, but also based upon her life-long practice of Judaism. Defendant in opposition to the motion maintains that he must have the opportunity to depose plaintiff's mother, adoptive father, and Catholic-baptized sister on the question, but to the Court the making of such requests merely indicates that defendant lacks any real knowledge as to the supposedly critical fact of whether plaintiff's mother is or is not Jewish. Moreover, the Court regards the request for further depositions as an unnecessary and inappropriate intrusion into plaintiff's family life for the purpose of eliciting incompetent evidence concerning what it is in fact that plaintiff genuinely believes about her own Jewishness. Plaintiff has told us what she has believed and now believes (and has adduced competent proof of the confirmatory beliefs of her Temple officials), and it is not for someone else, even her close family members, to advise the Court that plaintiff believed or believes otherwise.

Indeed, the conscientiousness of plaintiff's belief in her own Jewishness is apparent and undeniable on the basis of even those facts alleged in the answer. According to defendant, plaintiff and her family members made a concerted effort to misrepresent themselves as Jewish and were so successful in carrying out that conspiracy that defendant admittedly never suspected, even over eleven years of marriage, that plaintiff was other than a practicing Jew. Defendant expressly acknowledges that plaintiff participated with him and the children in weekly observances of the Sabbath at home and also in celebrations of Jewish holy days. Defendant further acknowledges that the parties' daughter Maya has been a full participant in her Jewish community throughout her young life and that the parties were dues-paying members of Temple Beth Zion throughout the marriage (although defendant admittedly only occasionally and reluctantly accompanied plaintiff and the children to Temple Beth Zion at plaintiff's insistence, instead usually staying home or attending services at his Conservative temple). Of course, the only reasonable perspective on the foregoing facts is not that they evidence some fantastically successful conspiracy to conceal that plaintiff is a Gentile, but rather that they evince the genuineness of plaintiff's Jewish faith and religious observance.

To illustrate the untenability of defendant's contention otherwise, it must be noted that defendant [*5]would have this Court conclude that the marital fraud perpetrated upon him by plaintiff and her family was so well conceived and far-reaching that it actually began decades before the wedding when plaintiff, at the instance of her mother and adoptive father, first attended temple and Jewish day school as a five- or six-year-old. Defendant would further have this Court believe that plaintiff kept up the pretense by attending temple and Hebrew school throughout her childhood, adolescence, teenage years, and young adulthood; by making her Bat Mitzvah at the Wailing Wall during a trip to Jerusalem by her temple youth group; and by marrying her first two husbands in Jewish ceremonies. Obviously, the Court does not regard the foregoing facts as proof of a nefarious family conspiracy and masterful fraud upon defendant, but rather as unrefuted proof that plaintiff professes her Jewishness honestly and in good faith.[FN2]

The counterclaims further must be dismissed on the basis of secular principles of law requiring that the alleged representation be material to the transaction, here, the marriage. That element of materiality is embodied or reflected in the common-law and statutory requirement that, in order to obtain an annulment of the marriage on the ground of fraud, the alleged victim of the fraud must abandon or disavow the marriage immediately upon learning of the fraud (see Domestic Relations Law §§ 140 [e], 144 [a]; see generally Di Lorenzo, 174 NY at 471). Although defendant alleges in his counterclaims that he did not learn that plaintiff's mother is Catholic until July 2009, after the breakup of the marriage, he told Dr. Nathanson, the psychologist court-appointed to conduct the forensic custodial evaluation, that he was informed of that fact by plaintiff's stepbrotheraround the time of the funeral of the parties' son.[FN3] That would have been in March 2008, before the breakup of the marriage. Even if defendant had no [*6]knowledge of the "truth" until July 2009, he did not interpose his counterclaim for annulment based on fraud until April 2010. In the meantime, defendant admittedly sent numerous e-mails to plaintiff in which he besought marital reconciliation. That those entreaties were sent so long after defendant supposedly learned that plaintiff does not fit his definition of who is not a Jew demonstrates as a matter of law that the alleged misrepresentation could not been material to defendant's decision to enter into and remain in the marriage.[FN4]


According to defendant's counterclaims, plaintiff fraudulently "led the defendant to believe" that the parties' marriage "was the first and only time" that plaintiff had been married, and that defendant did not discover until July 2009, or shortly after plaintiff's commencement of this divorce action, that plaintiff had been married and divorced "at least twice before." Plaintiff's rejoinder, as set forth in her motion papers, is that she never concealed her prior marriages and divorces from defendant but rather affirmatively revealed them during premarital discussions. The Court concludes that plaintiff has sustained her burden in support of the motion of demonstrating her entitlement to judgment as a matter of law on the issue of whether she defrauded defendant in this regard. Defendant, on the other hand, has failed to raise genuine material triable issues of fact with regard to his counterclaims for plaintiff's concealment of her prior marriages and divorces.

Defendant's counterclaims for an annulment and for damages based on this species of fraud fail at several turns. Concerning whether in fact plaintiff concealed or misrepresented her prior marital status before this marriage, i.e., in time for defendant to avoid it, and further concerning the materiality of such representation to defendant, the Court notes that nowhere does defendant allege or seek to prove that he asked plaintiff point-blank during their courtship and engagement whether she previously had been married married, and that plaintiff said, "No." At most, defendant claims that plaintiff led him to believe that the parties' marriage was plaintiff's first, but he does not say in what manner plaintiff so led him to believe that, apart from suggesting in his EBT testimony that she and her parents "whitewashed every fact" relating to her prior marriages (in the same way that they supposedly "whitewashed" their supposed Christianity), and that plaintiff's prior husbands were made to "disappear[ ]" from family photos and lore. As indicated, plaintiff unequivocally testifies and avers that she disclosed her prior marriages to defendant in a conversation that took place during their "early dating" days, after defendant had heard from a mutual friend that plaintiff "had been previously married."

Most critically for defendant, the documentary evidence refutes any claim of concealment or misrepresentation by plaintiff in this regard. The application for the parties' Virgin Islands marriage [*7]license explicitly lists plaintiff's "Previous Marital Status" as "divorced."[FN5] Unlike defendant's since-prepared affidavit, the EBT testimony cannot be read as suggesting that the information in question was filled in by plaintiff after defendant had signed the application. Rather, defendant's EBT testimony suggests only that defendant, being "so excited" to be marrying plaintiff, overlooked the information when he signed the application. The Court would reach the same conclusion upon its consideration of the form itself, which plaintiff testified the parties completed together and which on its face calls for the completion of the document before the marriage applicants mutually sign it and swear to the truth of its contents before a territorial court official (again, plaintiff testifies that the parties went together to the registrar's office in St. Thomas). Certainly, defendant is bound by whatever a reading of the document would have revealed to him, and cannot simply claim to have been "unaware" of its contents (cf. Morris v Snappy Car Rental, 84 NY2d 21, 30 [1994]; Gillman v Chase Manhattan Bank, 73 NY2d 1, 11 [1988]; Peabody v Northgate Ford, Inc., 16 AD3d 879, 881 [3d Dept 2005]; Maines Paper & Food Serv. v Adel, 256 AD2d 760, 761 [3d Dept 1998]). Just as certainly, defendant will not now be heard to contend that he signed and swore to the truth of the contents of an official document that had been left blank in some allegedly crucial respect. Moreover, although the Court cannot fault defendant for his excitement at the moment of signing, it appears that the application was completed, signed and sworn to by both parties no later than May 22, 1998, and that the parties were not married until six days later, thereby affording defendant a somewhat more relaxed opportunity before the wedding to read and understand that to which he had sworn. Defendant nowhere states that he neither read nor had an opportunity to read the completed document during that interval or indeed during the eleven-year marriage. In short, the Court must determine as a matter of law that defendant was not misled about plaintiff's prior marital status and did not rely to his detriment on any such lie or lack of information in marrying or remaining married to plaintiff.

With further reference to the fact and materiality of any such concealment or misrepresentation by plaintiff, defendant expressly and repeatedly has acknowledged, in his counterclaims, EBT testimony, affidavit, and statements to the psychologist, that he "heard rumors" only a couple of years into the marriage that plaintiff had been married previously but that, when questioned by defendant, plaintiff at first was "evasive" but subsequently "denied those rumors." Defendant claims that it was not until June or July 2009, after plaintiff had sued him for divorce and after he had hired a private investigator, that he discovered that plaintiff had been married and divorced twice before. Defendant does not say why, upon allegedly hearing rumors of a prior marriage and initially being thwarted in obtaining a straight answer from plaintiff, he did not make immediate further inquiry by other means reasonably calculated to lead to the truth, whether by hiring a private investigator, as he eventually did, or by simply asking any number of individuals who would have been in a position to know whether plaintiff had been previously married, including her friends and fellow members of the family's temple. Such a failure on the part of defendant [*8]establishes the lack of materiality of the allegedly initially concealed, and subsequently allegedly lied about, matter.[FN6] So does defendant's express allegation, in both his original and amended answer, that if he "had known that the plaintiff had already been divorced at least twice," he "would have had significant concerns and would have had in-depth discussions with the plaintiff concerning her prior marriages and why they ended." So, finally, do defendant's admittedly numerous pleas for marital reconciliation, including those entreaties made in e-mails sent after defendant supposedly learned about the prior divorces from his private investigator.

Accordingly, the motion of plaintiff is GRANTED, and the counterclaims of defendant seeking annulment of the marriage and compensatory and punitive damages on grounds of fraud are DISMISSED.

All counsel are to report for a status conference to be held on September 19, 2011 at 11:45 a.m. in Part 34 at 50 Delaware Avenue.



Footnote 1:There is a further allegation in the counterclaim(s) that plaintiff committed fraud insofar as she only belatedly disclosed, after 11 years of marriage, that she has been known in her life by 23 different aliases, but neither party discusses that allegation in their respective motion papers. The Court will not further discuss that allegation, which it regards as insufficient in light of the complete absence of evidence that plaintiff was misidentified in the marriage certificate.

Footnote 2:Defendant would further have this Court conclude that plaintiff keeps up the fraud by now expressly attesting to this Court that she is Jewish. Indeed, the logical upshot of defendant's entire argument is that if plaintiff knew at the time of the wedding and throughout the marriage that she is not Jewish, she necessarily must know it now but nevertheless continues to lie about it.

Footnote 3:That and some other critical statements of defendant are set forth in the written report of Dr. Nathanson. Although defendant objects to the Court's consideration of his statements to Dr. Nathanson on this motion for summary judgment, CPLR 3212 (b) explicitly contemplates the Court's consideration in this procedural context of any "written admissions" made by the party opposing the motion, without specifying that the declarant must have authored the writing in which such statements are embodied. Although judicial consideration of statements by a party memorialized by a nonparty might ordinarily give rise to a double hearsay problem, here it must be emphasized that the pertinent admissions of defendant are enshrined in a report of a court-appointed neutral that was written specifically for the purpose of being considered by the Court in lieu of in-court expert testimony. The Court's understanding of the applicable law is that the psychologist's report itself is admissible under the business record exception to the hearsay rule (see CPLR 4518; Matter of Noemi D., 43 AD3d 1303, 1304 [4th Dept 2007], lv denied 9 NY3d 814 [2007]; Matter of Ricky A.B., 15 AD3d 838, 839 [4th Dept 2005], subject to exclusion or excision of any inadmissible hearsay statements contained therein (i.e., statements of individuals who are not parties to the action or under a business duty to impart information to the psychologist) (see Matter of Loren B. v Heather A., 13 AD3d 998, 1000 [3d Dept 2004], lv denied 4 NY3d 710 [2005]). The Court thus believes that it may consider the neutral expert's report, including any party statements recorded therein, without violating the hearsay rule.

Footnote 4:The Court cannot conclude its discussion of the alleged materiality of the misrepresentation (and of the genuineness of the parties' respective religious beliefs) without setting forth its own strong suspicions, based upon defendant's statements to the psychologist and defendant's counsel's arguments to this Court, that defendant has essentially financial motivations for seeking an annulment of his marriage to plaintiff. Why defendant believes that an annulment (as opposed to a divorce) will inure to his financial advantage in the matters of spousal support and equitable distribution following an eleven-year marriage is not clear. The Court has strained to disabuse him of any such notion (see LeMieux v LeMieux, 48 AD3d 644, 645 [2d Dept 2008]; Domestic Relations Law § 236 [B] [2], [6] [a]; see also Anglin v Anglin, 80 NY2d 553, 557 [1992], citing Domestic Relations Law § 236 [B] [5] [a]), and accordingly has put defendant on notice that he will be made to bear those attorneys' fees reasonably incurred by plaintiff in conducting discovery into and successfully moving against defendant's counterclaims for annulment of the marriage and for damages based on fraud.

Footnote 5: The document consists of two portions, the application for the marriage license on the one side of the paper and, on the other side, the marriage license/certificate. The marriage license itself notes plaintiff's divorce as of March 14, 1996, thus indicating that at least the most recent divorce had been revealed and documented to the satisfaction of territorial authorities before the marriage license was issued. Although the marriage license itself contains an erroneous bureaucratic recital to the effect that the 1998 marriage was plaintiff's "second," defendant has repeatedly articulated his fraud claim in terms of plaintiff's alleged nondisclosure of a material fact concerning whether plaintiff had been "married before" and "divorced before," "whether on one occasion or two," and in terms of her alleged "misrepresentation that she had never been married before" and that the parties' marriage was her "first and only" one.

Footnote 6:Of course, if defendant could with reasonable diligence have discovered plaintiff's prior marriage(s) within a few years of the wedding, his claim to annul the 11-year marriage would be time-barred (see Domestic Relations Law § 140 [e]; CPLR 213 [8]). Moreover, it is at least arguable that, upon hearing rumors of plaintiff's prior marriage(s), defendant was on "full knowledge of the facts constituting" the alleged fraud, thereby defeating his fraud claim on the ground that he did not immediately abandon the marriage (Domestic Relations Law §§

140 [e]; 144 [a]).